OFCCP Issues Final Rules on Affirmative Action for Federal Contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released two final rules that drastically alter federal contractors’ existing affirmative action and nondiscrimination obligations for individuals with disabilities and veterans. The Associated Builders & Contractors association was critical of the rules because they, “set infeasible compliance requirements for federal construction contractors, despite the agency’s inability to demonstrate that contractors fail to meet the previous requirements under federal law.”

“Although industry studies show that the individuals covered by these rules are already appropriately represented in the federal contracting sector, now contractors will be saddled with incredibly expensive recordkeeping obligations that will do nothing to increase employment of these individuals,” said ABC Vice President of Government Affairs Geoff Burr.

Under Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), federal contractors and subcontractors are already required to maintain affirmative action and nondiscrimination programs. However, OFCCP’s new rules revise existing procedures by drastically increasing the paperwork burdens on federal contractors in all industries.

Of most concern to construction contractors are provisions requiring written documentation and tracking of workforce statistics to determine whether the percentage of protected employees meets affirmative action requirements for federal projects. Such paperwork and reporting provisions are completely new to the construction industry—a fact that was not taken into account in OFCCP cost estimates. OFCCP ignored the unique nature of the construction industry and its workforce, which the agency itself has characterized as ‘fluid’ and ‘transitory,’ and which has historically warranted a unique approach toward affirmative action compliance.

“ABC supports OFCCP’s statutory mission to address employment discrimination against veterans and individuals with disabilities, and remains committed to placing these individuals in good construction jobs,” Burr said. “Unfortunately, the Obama administration appears to be more concerned with imposing new and costly burdens on federal contractors than with crafting reasonable policies based on sound statistics and data.

Because of the serious legal and practical concerns with the agency’s new rules, ABC will explore avenues to challenge the rules in federal court. OFCCP is hosting webinars on the final rules on the following dates: VEVRAA rule September 11 and Section 503 rule September 18 . Additional guidance, including frequently asked questions, is available on the OFCCP websites for both the disabilities rule and the veterans rule. Read More.